IDEA Complaint Decision 11-023

On June 8, 2011, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Elmbrook School District. This is the departments decision regarding that complaint. The issues are whether the district, during the 2010-11 school year, properly implemented the students individualized education program (IEP) regarding placement, properly included required participants during the IEP team meeting, and properly responded to the parents request for an independent educational evaluation (IEE).

In determining the educational placement of a student with a disability, each district must ensure the placement decision is made by the students IEP team, including the parents, and is made in conformity with least restrictive environment (LRE) provisions. Removal from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. The local educational agency (LEA) must implement the students placement in accordance with the students IEP. The complainant believes the student was removed from the general education classroom more often than described in the students IEP.

The student had two IEPs in effect during the 2010-11 school year. In developing the IEPs, the IEP team considered the students ability to participate in the general education environment. The students IEP in effect through February 15, 2011, specified the student would participate in general education classes for one music class, half of art, and two 15-minute gym classes per week and would join his class for lunch, morning and afternoon routines, special events, and recess. The IEP indicated all other academic instruction and related services occurred in special education environments. The IEP was implemented as written.

The IEP team met to review and revise the students IEP on February 15, 2011. The students parents attended the meeting. The revised IEP noted the student required specially designed or modified instruction in communication, social skills, academics, and behavior which would take place in the special education classroom. The IEP documented the student spent 10-15 minutes in the regular class each morning, attended two 30-minute gym classes, the second half of art, and one 30-minute music class. The IEP noted the student would participate in music class for approximately 20 minutes before requiring a break. Such removals were consistent with his behavior intervention plan (BIP). There was some discussion during the meeting about whether the student could receive additional instruction in the regular class, but the decision was made not to make any additional revisions to the IEP at that time. A copy of the IEP and placement was provided to the parent following the meeting, and the IEP was implemented as written.

IEP team meetings were held on April 18, 2011, and May 24, 2011, to discuss the students placement and parental concerns. The students behavior plan and participation in the general education environment was discussed during these meetings. It was agreed the student should receive more instruction in his regular classroom and revisions were needed to the positive behavioral interventions, supports, and other strategies to address the students behavior. A revised IEP has not yet been finalized to reflect these changes. Within 30 days of this decision, the district will provide documentation to the department that the students IEP has been revised.

A district must ensure the IEP team for each student with a disability includes the students parent, at least one regular education teacher of the student (if the student is, or may be, participating in the regular education environment), at least one special education teacher of the student, and an LEA representative. A required IEP team member may be excused from attending an IEP team meeting, in whole or in part, when the meeting involves a modification to, or discussion of, the members area of the curriculum or related services if, in writing, the parent and the district agree to the excusal, and the IEP team member submits written input into the development of the IEP prior to the meeting.

All required participants were present at the start of the April 18, 2011, IEP team meeting. The purpose of the meeting included discussion about the students participation in the general education curriculum and environment. The general education teacher was dismissed to return to class shortly after the meeting began. The teacher provided limited input to the IEP team prior to leaving. Additional discussion regarding the students ability to participate in the general education curriculum and environment occurred after the teacher left. The parent agreed to excuse the teacher, but the agreement was not documented in writing. The district did not properly excuse the general education teacher from this meeting. The teacher participated in the next IEP team meeting held on May 24, 2011. Within 30 days of this decision, the district must submit to the department a corrective action plan to ensure all staff participating in IEP team meetings understand the proper action to take when excusing a required IEP team participant from attending an IEP team meeting, in whole or part.

On February 16, 2010, the district conducted a three-year reevaluation. On April 13, 2010, the LEA completed a functional behavior assessment (FBA) so they could develop the students BIP. The district did not consider the FBA to be part of a reevaluation. Following completion of the FBA, a behavior intervention plan was developed and implemented with the student.

An LEA must ensure a reevaluation of each child with a disability is conducted if the LEA determines that the educational or related services needs warrant a reevaluation, or if the childs parent or teacher requests a reevaluation. A parent has the right to an independent educational evaluation (IEE) at public expense if the parent disagrees with the LEAs evaluation. If a FBA is used to collect additional information to help determine the nature and extent of the students special education and related services, including the development or modification of a students behavioral intervention plan, it is considered an evaluation and is subject to the parents right to an IEE [Letter to Christiansen, 48 IDELR 161 (February 9, 2007)].

During the April 18, 2011, IEP team meeting, the parent requested additional information about the students schedule, curriculum, and staffing and expressed her belief that an updated FBA and academic assessment was needed before the IEP team could discuss suggested changes to the students placement. District staff agreed the parents requests would be considered and the district would see if arrangements could be made to bring in someone to observe the student before the end of the school year.

On May 6, 2011, the parent sent a letter to the district requesting an IEE because she disagreed with the districts most recent evaluation and FBA and with the IEP teams decision that the student required an alternate curriculum. On May 9, 2011, the district notified the parent denying the parents request for an IEE for an FBA because the district did not believe the districts most recent FBA met the definition of a reevaluation. On May 24, 2011, the IEP team met and reviewed a FBA completed by the district in response to the parents concerns. The district did not believe the FBA was part of a reevaluation. On June 10, 2011, the district provided the parent with information about the districts IEE policies and procedures, and district staff indicated it would grant the parents request for an IEE for academic skill performance only.

Once a parent requests an IEE, the LEA must, without unnecessary delay, either initiate a due process hearing to show its evaluation is appropriate or ensure the parent be granted an IEE at public expense. In this case, the FBA conducted on April 13, 2010, met the definition of an evaluation for which the parent could request an IEE. The LEA did not properly respond to the parents May 6, 2011, request for an IEE to conduct an FBA because it believed the parent did not have the right to an IEE for this purpose. Within 15 days of the date of this decision, the district must provide documentation to the department that it has properly responded to the parents request for an IEE to conduct an FBA.

All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint.